2.Challenge
in this appeal is to the order of a Division Bench of the Bombay High Court
dismissing the Letters Patent Appeal filed by the appellant. Writ Petition
filed by the appellant was dismissed on the ground that the same was not
maintainable.

3.Learned
counsel for the appellant submitted that the impugned order of the Division
Bench is clearly unsustainable. Reference is made to Rules 3 & 18 of the
Bombay High Court Appellate Side Rules, 1960 (in short the `Rules') with the
amended Letters Patent of the High Court of Bombay, 1865 (in short the `Letters
Patent'). It is submitted that the Division Bench did not take note of what has
been stated by several judgments of this Court.

4.Learned
counsel for the respondent on the other hand supported the impugned judgment of
the High Court.

5.Rules
3, 18(41) and the proviso 18(44) read as follows:

"3. Appeal to be
placed before Division Bench for admission - Appeals under Clause 15 of the
Letters Patent shall be placed for admission before a Division Bench.

18. Single Judge's
powers to finally dispose of applications under Article 226 or 227 -
Notwithstanding anything contained in Rule 1,4 and 17 of this Chapter
applications under Article 226 or under Article 227 of the Constitution for
applications styled as applications under Article 227 of the Constitution read
with Article 226 of the Constitution arising out of :

xxx (41) The order
passed under the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977.

(44) Orders passed by
the different Committees constituted by the State Government for verification
of the claims of Scheduled Cast and Scheduled Tribe candidates, may be heard
and finally disposed or by a single judge to be appointed in this behalf by the
Chief Justice.

Provided when the
matter in dispute is or relates to the challenge to the validity of any statute
or any rules or regulations made thereunder, such applications shall be heard
and disposed off by a Division Bench to be appointed by the Chief
Justice."

7.In
Sushilabai's case (supra) it was noted at paragraph 4 as follows:

"The Full Bench
of the Bombay High Court wrongly understood the above Umaji Kesho Meshram case
(supra). In Umaji case (supra) it was clearly held that where the facts justify
a party in filing an application either under Article 226 or 227 of the
Constitution of India and the party chooses to file his application under both these
articles in fairness of justice to party and in order not to deprive him of
valuable right of appeal the Court ought to treat the application as being made
under Article 226, and if in deciding the matter, in the final order the Court
gives ancillary directions which may pertain to Article 227, this ought not to
be held to deprive a party of the right of appeal under clause 15 of the
Letters Patent where the substantial part of the order sought to be appealed
against is under Article 226. Rule 18 of the Bombay High Court Appellate Side
Rules read with clause 15 of the Letters Patent provides for appeal to the
Division Bench of the High Court from a judgment of the learned Single Judge
passed on a writ petition under Article 226 of the Constitution. In the present
case the Division 4 Bench was clearly wrong in holding that the appeal was not
maintainable against the order of the learned Single Judge. In these
circumstances we set aside the impugned order of the Division Bench and direct
that the Letters Patent Appeal filed against the judgment of the learned Single
Judge would now be heard and decided on merits. In view of the fact that it is
an old matter we request the High Court to decide the Letters Patent Appeal
within six months. It is further directed that till the final disposal of the
Letters Patent Appeal the operation of the order of the Single Judge shall
remain stayed. The appeals are allowed in part with no order as to costs."

8.In
Umaji's case (supra) at paragraph107 it was noted as follows:

"Petitions are
at times filed both under Articles 226 and 227 of the Constitution. The case of
Hari Vishnu Kamath v. Syed Ahmad Ishaque [AIR 1955 SC 233] before this Court
was of such a type. Rule 18 provides that where such petitions are filed against
orders of the Tribunals or authorities specified in Rule 18 of Chapter XVII of
the Appellate Side Rules or against decrees or orders of courts specified in
that rule, they shall be heard and finally disposed of by a Single Judge. The
question is whether an appeal would lie from the decision of the Single Judge
in such a case. In our opinion, where the facts justify a party in filing an
application either under Article 226 or 227 of the Constitution, and the party
chooses to file his application under both these articles, in fairness and
justice to such party and in order not to deprive him of the valuable right 5
of appeal the court ought to treat the application as being made under Article
226, and if in deciding the matter, in the final order the court gives
ancillary directions which may pertain to Article 227, this ought not to be
held to deprive a party of the right of appeal under clause 15 of the Letters
Patent where the substantial part of the order sought to be appealed against is
under Article 226. Such was the view taken by the Allahabad High Court in Aidal
Singh v. Karan Singh [AIR 1957 All 414] and by the Punjab High Court in Raj
Kishan Jain v. Tulsi Dass [AIR 1959 Punj 291] and Barham Dutt v. Peoples'
Cooperative Transport Society Ltd., New Delhi [AIR 1961 Punj 24] and we are in
agreement with it."

9.In
Mavji's case (supra) this Court inter alia noted as follows:

"12. At the
outset we shall consider the contention as to whether the Letters Patent Appeal
was maintainable against the order of the learned Single Judge. It was
contended by the counsel for the respondent-bank that the appeal was not
maintainable since the learned Single Judge had exercised his jurisdiction
under Article 227 of the Constitution of India and, therefore, there was no question
of Letters Patent Appeal being maintainable against the same. We, therefore,
went through the Special Civil Application, a copy of which is the part of the
paperbook. The said writ petition clearly mentions on the very first page that
the writ petition was being filed under 6 Article 226 of the Constitution of
India. Again para 10 of the writ petition mentions as under:

"Being aggrieved
by the order passed by the Industrial Tribunal, the petitioner begs to approach
this Hon'ble court under Article 226 of the Constitution of India challenging
the award on the following amongst other grounds...."

Ground (iv) on the
same page says:

"That the order
passed by the Tribunal is arbitrary, unreasonable, unjust and perverse."

Even prayer clause in
para 15 is as under:

"That by
appropriate writ, direction and order, the impugned order of Industrial
Tribunal (Central) Rajkot at Annexure B be quashed and/or set aside."

10.All
this suggests that the writ petition was not only under Article 227 of the
Constitution of India but there is a specific mention of Article 226. In a
reported decision of this Court in Sushilabai Laxminarayan Mudliyar & Ors.
V. Nihalchand Waghajibhai Shaha and others [(1993) Supp. 1 SCC 11] a similar
question fell for consideration. In para 4 of the said judgment this Court
observed:

"The Full Bench
of the Bombay High Court wrongly understood the above Umaji Kesho Meshram case.
In Umaji case it was clearly held that where the facts justify a party in
filing an application either under Article 226 or 227 of the Constitution of
India and the party chooses to file his application under both these articles
in fairness of justice to party and in order not to deprive him of valuable
right of appeal the court ought to treat the application as being made under
Article 226, and if in deciding the matter, in the final order the court gives
ancillary directions which may pertain to Article 227, this ought not to be
held to deprive a party of the right of appeal under Clause 15 of the Letters
Patent where the substantial part of the order sought to be appealed against is
under Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read
with clause 15 of the Letters Patent provides for appeal to the Division Bench
of the High Court from a judgment of the learned Single Judge passed on a writ
petition under Article 226 of the Constitution. In the present case the
Division Bench was clearly wrong in holding that the appeal was not
maintainable against the order of the learned Single Judge.

11.In
these circumstances we set aside the impugned order of the Division Bench and
direct that the Letters Patent Appeal filed against the judgment of the learned
Single 8 Judge would not be heard and decided on merits...."

These observations
were made by this Court after taking into consideration the observations made
in Umaji Keshao Meshram & Ors. V. Radhikabai, Widow of Anandrao Banapurkar
& Anr. [1986 (Supp) SCC 401].

12.In
the present matter apart from the fact that the petition is labeled under
Article 226 of the Constitution of India, it is clear that the grounds raised
in the petition suggest that the petition is not only under Article 227 but
also under Article 226 of the Constitution. It is to be seen that in the
grounds raised against the order of the Tribunal, it is specifically suggested
that the order passed by the Tribunal was arbitrary, unreasonable, unjust and
perverse. The further complaint made against the Tribunal's order pertain to
failure on the part of the Tribunal to appreciate certain facts and
eventualities thereby complaining non application of mind on the part of the
Tribunal. Complaint has also been made against the approach of the Tribunal and
it is suggested that the said approach was perverse. After reading the writ
petition we are convinced that the contentions raised and the facts stated in
the petition justify the respondent herein to file an application both under
Articles 226 and 227 of the Constitution of India."

13.The
effect of the provisions and the decisions referred to above does not appear to
have been considered by the High Court while holding that the Letters Patent
Appeal was not maintainable.

14.We,
therefore, remit the matter to the High Court to consider the issues, the
applicable provisions and the decisions afresh.

15.We
make it clear that we have not expressed any opinion on merits as regard the
maintainability. Since the matter is pending since long, we request the High
Court to dispose of the matter as early as practicable preferably by the end of
2008.